Law Weblog

More on juries…

R v Abdroikov, Green & Williamson [2005] CA
[Juries – composition]
DDD challenged the composition of the jury in their trials. In two cases, a serving police officer sat as a juror, and in the other, a Crown Prosecution Service solicitor.

Held: Since the Criminal Justice Act 2003 persons eligible to sit on a jury had been widened. It was necessary to draw a distinction between eligibility and whether a particular person should sit on a particular jury.
Persons involved in the administration of justice should not automatically be regarded as being disqualified, because of their occupations, from a jury. Jurors are randomly selected and appear as members of the public.
Special knowledge of the criminal justice system might create unconscious prejudiced, prejudice could exist in any juror and there being 12 jurors guards against individual prejudice.
It is expected that those employed in the administration of justice would be particularly careful not to act in a manner which was inconsistent with their jury duty.
In some cases the occupation of a juror as a police officer could reduce rather than increase his influence.

Guilty

Biological GBH nears a conclusion…

R v Dica [2005] (CA)
[Appeal—Leave refused – point of general public importance certified – biological GBH]
D infected V with HIV during unprotected, consensual, sex and was convicted of “biological GBH” (s 20 of the Offences Against the Person Act 1861). The issue of consent lead to a successful appeal a retrial was order and he was again convicted by the jury.

Held: Leave to appeal to the House of Lords refused but certified that a point of law of general pubic importance was involved in the decision.

Guilty
Comment: The leading cases of consent to serious injury (R v Dica [2004] CA; R v Barnes [2004] CA and R v Konzani [2005] CA) are not at ease with each other, and because leave was refused on a procedural ground it is quite likely that this will go to the House of Lords.

Burke v GMC (2005) CA

Mr. Burke suffers from a congenital degenerative brain condition and is confined to wheelchair. He took proceedings because he does not wish to die of hunger and thirst, and wished to be assured that before his condition reached its final stage, artificial nutrition and hydration (ANH) would not be withdrawn.

In legal terms, he is “competent”. In these circumstances, the Court is satisfied that if Mr. Burke wishes to continue to receive ANH in the circumstances he envisages, he will do so and that it would be unlawful for it to be withdrawn. Mr. Burke’s position is protected by the law as it stands, and that the guidance given in the GMC’s document Withholding and Withdrawing Life-prolonging Treatment: Good Practice in Decision Making issued in August 2002 is lawful. The fact that the GMC’s appeal has been allowed does not mean that Mr. Burke has lost. Mr. Burke could have sought reassurance from the medical profession and then the proceedings would have been unnecessary. The GMC has a responsibility to ensure patients are entitled to have confidence that they will be treated properly and that they will not be ignored or patronized because of their disability.

Full judgment will appear here

Prison population – new record

Although the Criminal Justice Act 2003 contains measures to boost the use of community punishments prison population has risen to a record 76,506.

Press report here

R(W) v Commissioner of Police for the Metropolis and another, Secretary of State for the Home Department as interested party (2005) QBD

[Police powers – arrest – removal – statutory interpretation no power conferred on police to use force in “dispersal zone”]
A 15 year old boy did not like the idea of being taken home by a police officer if he outstayed his welcome in a “dispersal zone”, so he challenged the order that covered the area near where he lived in Richmond, Middlesex.

Lord Justice Brooke said that the central issue was whether the power to “remove” a person under the Act gave the police permission to take juveniles home or gave them the right to use force to take them home (was permissive or coercive).

There were some clear indications that Parliament intended the power to be permissive only. Above all, there was the long standing and clear presumption that Parliament did not intend to authorise tortious conduct except by express provision.

The Act conferred no power on the police or a community support officer to interfere with the movements of someone under the age of 16 who was conducting himself lawfully within a dispersal area between the hours of 9pm and 6am.

The Act merely conferred on the police a very welcome express power to use police resources to take such a person home if he was willing to be taken home.

Despite much confusing press reports this case only focussed on the police power to ‘remove’, and not on the legality of the order or any other area of law.

Weekly Law Report here

Murder and manslaughter review announced today

The Home Office and Law Commission (independent of ministers) are to conduct the first comprehensive review of the law on murder and manslaughter for more than fifty years.

The Review is expected to last between 18 months and two years. It will focus on the partial defences including provocation. The Government has made clear its concern over the current position on provocation, particularly where the alleged provocation is due to sexual jealously and infidelity. In such cases, raising the partial defence can often mean the victim is blamed and the defendant is able to plead manslaughter not murder.

Today’s government announcement here

Application and Selection Panel for Queen’s Counsel

The public competition for appointing Queen’s Counsel (QCs) was introduced in England and Wales on 19 July 2005, an independent panel now makes the selection.

Previously, the Lord Chancellor recommended barristers (and solicitors) for appointment as Queen’s Counsel (referred to as silks in recognition of the silk gown they are entitled to wear) following consultation with judges and senior practitioners. There were criticisms that the outcome favoured certain groups.

Under the new scheme, which was developed by the Bar Council and Law Society, applicants will assess their own suitability to take silk under seven headings: integrity understanding and use of the law analysis of case material persuasiveness response to the development of a case working with the client teamwork.

Applicants must provide the names of referees who have recently seen them at work, including 12 judges or arbitrators, fellow practitioners or professional clients. The fee for successful applicants £4,050 (QC’s in previous years were earning not less than £120,00).

The Selection Panel includes a retired senior judge and other eminent persons drawn from the law and lay professions. The Secretary of State for Constitutional Affairs (the Lord Chancellor) will transmit the panel’s recommendations to the Queen. Solicitors, barristers and employed lawyers with suitable advocacy experience may apply. Currently, eight solicitors are QCs.

The procedure whereby a barrister Member of Parliament who becomes a Minister is automatically made a QC appears not to have been changed.

Selection panel’s website, here

Statutory interpretation: “jet ski” is a “ship”

5th July 2005 at Salisbury Crown Court, a 25-year old Weymouth man pleaded guilty to riding his Yamaha Wave Runner in contravention of Section 58 of the Merchant Shipping Act 1995.
Prior to this the judge had been asked to rule on whether the Personal Watercraft was a ship in terms of the Merchant Shipping Act. In his ruling Mr Recorder A Davies QC concluded that it was indeed a ship and that the legislation applied.

Sergeant Andy Hack of Dorset Police’s marine section said: “Following yesterday’s ruling it’s important that all those using personal watercraft recognise that they have the same responsibilities as all other water users in respect of Collision Regulations and The Merchant Shipping Act. We encourage all users to undertake training under the Royal Yachting Association’s syllabus”.

Justice for the victim. A ruling that supports a proportionate appellate system

R v van Dongen and another [2005] CA 
[Murder – provocation – need not be left to the jury in all cases for example if real issue was self-defence – justice for the victim and proportionate appellate system]
DD (brothers) attacked V, intending to kill him or to cause really serious bodily injury after he allegedly attacked them with a street sign. The trial judge refused to address the jury on provocation on the basis that provocation was a speculative possibility, if it were necessary in the instant case it would be necessary in every case in which the real issue was self-defence.

Held: Refusing to disturb the jury’s decision, no injustice had been done even though a provocation direction should have been given to the jury.
“Justice in a criminal trial rightly and necessarily concentrated on justice for the defendant. However, the court was not to overlook the matter of justice for those concerned with the victim also, nor the requirements of a proportionate criminal appellate system, which included that those who were surely and fairly shown to be guilty of murder, and had been so found by a jury, should not escape that consequence on gossamer grounds.”

Guilty
Comment: Gossamer = Light, delicate, flimsy as in cobwebs. 

House of Lords refuse to interfere in an arbitration award

Lesotho Highlands Development Authority-v- Impregilo SpA and Others [2005] UKHL
[ADR – arbitration – courts reluctant to interfere with arbitration findings – statutory interpretation]
D built a dam in Lesotho (Africa) for C. The parties took a dispute about additional labour costs to an arbitration tribunal in London. The Tribunal made an award in sterling and euros rather than the local Lesothan currency. Under the 1996 Act, a party may apply to the court challenging an award if the Tribunal has exceeded its powers. However, International Chamber of Commerce (ICC) Rule 28.6 provides that all parties forego any right of appeal to the courts, except for a serious irregularity under the 1996 Act.

Held: Their Lordships refused to disturb the Tribunal’s award. They upheld the principle – of “great importance” – of minimal intervention in arbitration proceedings.

C won

Comment: The Act was examined textually. A high threshold was required for the courts to intervene in arbitrations. Lord Steyn adopted a purposive approach upholding that the 1996 Act was intended to promote one-stop adjudication. A major purpose of the 1996 Act was to reduce drastically the extent of intervention of courts in the arbitral process. “The Act has however given English arbitration law an entirely new face, a new policy, and new foundations. The English judicial authorities . . . have been replaced by the statute as the principal source of law. The influence of foreign and international methods and concepts is apparent in the text and structure of the Act, and has been openly acknowledged as such. Finally, the Act embodies a new balancing of the relationships between parties, advocates, arbitrators and courts which is not only designed to achieve a policy proclaimed within Parliament and outside, but may also have changed their juristic nature.”